We don’t know the rule in Montana, but in NY one may not successfully sue his criminal defense attorney without showing actual innocence.  Here is a case from Montana of an exonerated criminal defenendant who wants to sue his attorney, now decesed.  There are of course, many hurdles.  Is there insurance for a public defender?  is there still an estate for the deceased attorney?  Is there a public defender agency?

"A man exonerated of rape charges after 15 years in prison claims in a federal lawsuit seeking damages that he was poorly represented at trial, by a now-deceased court-appointed defender.

Jimmy Ray Bromgard, whose conviction was overturned in 2002, is suing the state of Montana and Yellowstone County for $16.5 million. In depositions reviewed by the Billings Gazette, Bromgard claims his court-appointed attorney, John Adams, advised him to "plead guilty" the first time they met, then mounted a shoddy defense and bungled his appeal.

The public defender program was funded by the county. County attorneys have argued state judges were largely responsible for its operations, the Gazette reported.

Yellowstone County recently made a final offer to Bromgard in an attempt to settle the lawsuit, deputy county attorney Dan Schwarz told the newspaper. Schwarz would not provide further details except to say the offer is open until the end of the year.

The state has filed motions to be dismissed from the case, but they have not yet been ruled on by U.S. Magistrate Judge Carolyn Ostby. That part of the case is expected to focus on allegations of incompetent forensics work by the State Crime Lab and its former director, Arnold Melnikoff. "

Here is a case from California in which plaintiff’s attorney came into possession of a set of notes made by defendant’s attorney concerning the expert and his testimony.  Even though the notes inadvertently came into plaintiff’s possession, the attorney has been taken off the case by the court.

If things go wrong from here, will there be a legal malpractice case to follow?

"Taking advantage of an opposing lawyer’s privileged documents, even if they’re accidentally obtained, is a major no-no, the California Supreme Court ruled Thursday.

To drive its point home in the anxiously awaited ethics case, the court unanimously upheld El Segundo, Calif., lawyer Raymond Johnson’s disqualification from an automobile rollover case for using his opponent’s notes to impeach expert witnesses.

"An attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged," Justice Carol Corrigan wrote. "Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation."

Johnson represented a family who sued Mitsubishi Motors Corp., Mitsubishi Motor Sales of America and the California Department of Transportation following the 1998 rollover crash of a Mitsubishi Montero sport utility vehicle. Eleven-year-old Denise Rico died in the accident and her 18-year-old sister, Zerlene, was partially paralyzed.

Before the case reached trial, Johnson came into the possession of opposing attorney James Yukevich’s notes concerning a meeting with expert witnesses. Johnson copied the 12-page document, prepared by one of Yukevich’s paralegals, and used it during a subsequent deposition to discredit Yukevich’s experts.

Johnson claims the notes were given to him accidentally by a court reporter, while Yukevich insists they were illicitly taken from his co-counsel’s briefcase during an earlier deposition.

San Bernardino County Superior Court Judge Ben Kayashima eventually ruled that Johnson obtained the document inadvertently. But he still disqualified Johnson and his legal team from the case for breaching his ethical duties by using another lawyer’s confidential work product. "

Here is an interesting take on the issues of electronic discovery, its blossoming, and future legal malpractice cases.  In short, learn and the new rules, or face problems.

"Much ink has been spilled about the demands of discovery in the current technological age. The storage of electronic data, the existence of metadata and the wholesale migration from printed hard copy documents to electronic documents have challenged all practitioners, particularly those trained in discovery during the era of banker’s boxes and hard copy documents. The 2006 e-discovery amendments to the Federal Rules of Civil Procedure, along with other standard-setting rules, have raised the stakes. In fact, in the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients — it may lead to professional malpractice or the imposition of sanctions on counsel. If any doubt remained, the ongoing discovery dispute in the Qualcomm v. Broadcom case, discussed below, should eliminate

Despite the low standard, failure to provide competent representation nevertheless creates the potential for malpractice actions. Restatement, supra § 48 (2000). In legal malpractice actions, the client must establish that, but for the attorney’s neglect, the litigation would have ended in a result more favorable for the client. That is, the client must prove the existence of a duty, a breach of that duty, proximate cause and damage. 4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 30:5 (2007 ed.).

Thus, in general, an attorney owes a duty of care to clients to "exercise the competence and diligence normally exercised by lawyers in similar circumstances." Restatement, supra § 16 (2000). "

A while ago we reported on one of two class action expense [really over-expense] legal malpractice cases.  Now, this Phen-Fen case has surfaced.

"A former fen-phen client of Fleming & Associates has sued the Houston-based firm and partner George Fleming, alleging they took too much expense money out of her fen-phen settlement, including a share of $29 million for echocardiograms performed on prospective clients.

Plaintiff Sandra Karnes, who hired Fleming & Associates to seek damages from pharmaceutical company Wyeth for heart-valve injury she allegedly sustained after taking the diet-drug combination known as fen-phen, seeks class certification in the suit filed in the U.S. District Court for the Southern District of Texas.

Late last month, U.S. District Judge Ewing Werlein of Houston denied the defendants’ motion for summary judgment. No hearing is yet scheduled on the class certification motion.

The allegations in Karnes, et al. v. Fleming, et al. are interesting, because Karnes filed her complaint shortly before an arbitration panel ordered Houston lawyer John M. O’Quinn’s firm to pay more than $41 million to a class of 3,450 former breast implant clients "

Thanks to William Voorhees, an attorney in NJ who forwarded this story about a NJ legal malpractice case.  The case is Adelman v. Shenker, Superior Court of New Jersey, Appellate Division, A-3233-04T1, Decided 12/14/07.

Defendant attorney had sleep apnea, and after extensive pre-trial activity, had to tell the judge that he just could not go ahead with the trial, for his lack of sleep. anxiety, and other symptoms.  More interesting however, was the use of a sleep apnea specialist in this legal malpractice case. 

Ultimately, the case turned around a pre-trial mediation session, its recommendation, the lack of communication by attorney to plaintiff [then the defendant] client, and its repercussions.

When is Pre-judgment Interest permissible in Legal Malpractice cases?  The Second Department recently wrote on this issue in Barnett v Schwartz ,2007 NY Slip Op 09712 ,Decided on December 11, 2007 ,Appellate Division, Second Department ,Ritter, J., J

"The plaintiffs are entitled to an award of prejudgment interest. "CPLR 5001 operates to permit an award of prejudgment interest from the date of accrual of the malpractice action in actions seeking damages for attorney malpractice" (Horstmann v Nicholas J. Grasso, P.C., 210 AD2d 671; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 444 n 3; Meyer v Glynn, 278 AD2d 291; Butler v Brown, 180 AD2d 406). In relevant part, CPLR 5001(b) provides: "[I]nterest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." Here, the earliest ascertainable date that the plaintiffs’ legal malpractice cause of action existed is December 21, 1992, the date that the agreement was entered into (see McCoy v Feinman, 99 NY2d 295; Town of Wallkill v Rosenstein, 40 AD3d 972). Thus, interest is to be computed from the dates that the damages were incurred (i.e., the dates that the plaintiffs paid the amounts awarded as damages for rent, renovations, and legal fees) or, if impractical, from a single reasonable intermediate date. "

One unique element in legal malpractice is the "but for" requirement… that "but for" the legal malpractice there would have been a different or better result.  Defendants in legal malpractice are eager to flaunt this requirement, and argue that the legal malpractice must be the "sole" cause of the injury.

The Second Department now clarifies in Barnett v Schwartz ,2007 NY Slip Op 09712 ,Decided on December 11, 2007 ,Appellate Division, Second Department ,Ritter, J., J

"The defendants’ argument concerning causation has an impact upon the analysis of other issues raised. Thus, it will be discussed first.

The defendants argue that the Supreme Court erred when it charged the jury that the plaintiffs needed to prove only that the defendants’ negligence was a proximate cause (i.e., a "substantial" cause) of damages. Rather, they assert, the court should have charged the jury, as they requested, that the plaintiffs needed to prove that "but for" such negligence they would not have sustained damages. The defendants argue that the "less rigorous standard" of causation charged by the Supreme Court warrants reversal and a new trial. However, this argument lacks merit.

The elements to be proved in a legal malpractice action have been subjected to various formulations. Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be "the" proximate cause of damages (Britt v Legal Aid Soc., 95 NY2d 443, 446; see e.g. Kleeman v Rheingold, 81 NY2d 270; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407; Cohen v Wallace & Minchenberg, 39 AD3d 691; Cummings v Donovan, 36 AD3d 648; Kotzian v McCarthy, 36 AD3d 863), while others hold that it must be "a" proximate cause of damages (Bauza v Livington, 40 AD3d 791, 793; see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725; Terio v Spodek, 25 AD3d 781; Pistilli v Gandin, 10 AD3d 353). There are also cases from this court requiring the damages to be a "direct result" of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409; Kotzian v McCarthy, 36 AD3d 863; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either "the" or "a" proximate cause of damages, but require proof that, "but for" the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g., Leder v Spiegel, 9 NY3d 836; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428; Davis v Klein, 88 NY2d 1008; Carmel v Lunney, 70 NY2d 169). The defendants here, while not expressly describing the difference between proximate and "but for" causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.

First, the parties have not cited, and research has not revealed, any case from the Court of Appeals or any other court expressly holding that "but for" causation is synonymous with sole proximate cause, or that requires a degree of causation in legal malpractice cases greater than proximate cause, i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. Similarly, the parties have not cited, and research has not revealed, any case discussing or identifying any basis for singling out attorneys for special treatment on the issue of causation. The Pattern Jury Instruction on legal malpractice, which focuses upon the lawsuit-within-a-lawsuit scenario, does not expressly use either the phrase "but for" or "proximate cause" in its formulation (NY PJI 2:152). However, the comments to the instruction, while noting the "but for" formulation, provide that a defendant-attorney’s negligence need only be [*5]"a" proximate cause of damages and refer the reader to the general Pattern Jury Instruction on proximate cause (NY PJI 2:152, p 872, 880; NY PJI 2:70). Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause. For example, in the lawsuit-within-a-lawsuit scenario, the plaintiff-client must prove that but for the defendant-attorney’s negligence they would have prevailed in the underlying action. Stated otherwise, if the plaintiff-client cannot prove that it would have prevailed in the underlying action, the defendant-attorney’s negligence was not a proximate cause of any damages arising from the loss of the same. Further, there are several decisions from this court requiring the plaintiff-client to prove both that the defendant-attorney’s negligence was "a" proximate cause of damages, and that "but for" such negligence it would have prevailed in the underlying action or would not have incurred damages (see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725; Terio v Spodek, 25 AD3d 781). Clearly, these decisions do not provide for two different measures of causation in the same standard. Indeed, it would appear that the "but for" language, which grew out of the lawsuit-within-a-lawsuit scenario (see Carmel v Lunney, 70 NY2d 169; N. A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730), is merely a recognition of the factual particularities of proving proximate cause and damages in such an action. When applied in a case involving negligent legal advice (i.e., a case where there is no underlying cause of action to lose), it would appear that the "but for" formulation is merely a recognition of the factual complexities that may attend proving proximate cause when the legal advice was merely one of a myriad of factors that contributed to the plaintiff-client’s ultimate decision or course of action (see e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428). Finally, we note, a conclusion that the "but for" formulation of causation requires proof that the negligence of the defendant-attorney was the sole proximate cause of damages is contrary to the holding of the Court of Appeals that the contributory negligence of the plaintiff-client may be pleaded as an affirmative defense (see Arnav Indus. Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300; see also Boudreau v Ivanov, 154 AD2d 638). In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.

Plaintiff  in this Long Island Legal Malpractice case was a company that wanted to create and bottle barbecue sauce. They looked for a site, and unfortunately came up with a building on a hazardous waste site.  However, only the attorneys knew of this small problem, and they did not let the clients know.

"RITTER, J.:  The issue to be decided on this appeal is whether the defendants-attorneys committed legal malpractice in their representation of the plaintiffs in the negotiation and closing of a lease and purchase option agreement concerning certain commercial property. The plaintiffs sought the property for the purpose of manufacturing barbecue sauce. Approximately two years prior to the signing of the agreement, the subject property was classified as an inactive hazardous waste disposal site. The defendants knew that there were [*2]environmental violations concerning the property that had to be dealt with and wrote to the relevant enforcement agencies asking for details. Despite the fact that those letters were never responded to, the defendants advised the plaintiffs to enter into the agreement at issue on an "as is" basis. The defendants never informed the plaintiffs of the environmental violations or the consequence of the "as is" clause of the agreement until two years later. We find the jury’s determination that the plaintiffs were entitled to such information before entering into the agreement, and that the defendants committed malpractice by failing to advise the plaintiffs about the violations and the effect of the "as is" clause, was reached on a fair interpretation of the evidence. "